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State v. Seymour

Court of Appeals of Missouri, Western District

March 26, 2019

STATE OF MISSOURI, Appellant,
v.
CALE D. SEYMOUR, Respondent.

          Appeal from the Circuit Court of Johnson County, Missouri The Honorable Sue Dodson, Judge.

          Before Division One: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

          OPINION

          CYNTHIA L. MARTIN, JUDGE

         The State appeals the trial court's grant of a motion for judgment of acquittal in a case charging Cale Seymour ("Seymour") with the misdemeanor of failing to insure workers' compensation liability in violation of section 287.128.7.[1] The judgment of acquittal was entered at the close of the State's evidence, and was based solely on the trial court's finding that the charged violation was time-barred pursuant to section 287.128.11 because it was filed more than three years after the discovery of Seymour's offense. Because the charge against Seymour was filed more than three years after the discovery of his offense, we affirm.

         Factual and Procedural Background

         On February 3, 2014, the Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, Fraud and Noncompliance Unit (the "Fraud and Noncompliance Unit") received a referral, and began investigating Cale Seymour Construction, LLC ("Company") to determine whether it had failed to insure workers' compensation liability in violation of section 287.128.7. The Company was in the construction business. By law, it was required to maintain workers' compensation insurance at any time it had at least one employee.[2]

         Through database searches conducted on February 3, 2014, a Fraud and Noncompliance Unit investigator discovered that Seymour was the organizer of the Company; that the Company was formed on December 30, 2005; that the Company had workers' compensation insurance nearly continuously from the time it was formed until August 3, 2011; that the Company did not appear to have workers' compensation insurance from August 3, 2011 through October 3, 2013; that the Company did have workers' compensation insurance after October 3, 2013; and that between August 3, 2011 through October 3, 2013, the Company reported having one or more employees in some quarters, and no employees in other quarters though wage reports stated that wages were paid by the Company in all quarters.

         The Fraud and Noncompliance Unit investigator did not undertake any other investigation until mid-May, 2014, when the investigator began attempting to reach Seymour by telephone. The investigator successfully contacted Seymour on May 19, 2014. During the recorded telephone call, Seymour admitted that he employed one or more employees during all quarters between August 3, 2011 and October 3, 2013, and that he knew the Company did not have workers' compensation insurance as required during that time frame. In the days that followed the May 19, 2014 telephone call with Seymour, the investigator unsuccessfully attempted to gather information from Seymour's insurance agent.

         In mid-June, 2014, the Fraud and Noncompliance Unit prepared a probable cause statement and referred Seymour's alleged offense to the Attorney General's Office for prosecution.

         On May 17, 2017, the State charged Seymour with failure to insure workers' compensation liability in violation of section 287.128.7. At a bench trial on February 27, 2018, the State presented the testimony of the Fraud and Noncompliance Unit investigator. The investigator described how investigations of this nature are undertaken; the steps taken during the investigation of Seymour; how his investigation of Seymour modeled the steps ordinarily taken in investigations of this nature; and the decision to refer the case to the Attorney General. On cross-examination, the investigator offered no explanation for the time that elapsed between the February 3, 2014 database searches and the attempts that began in mid-May, 2014 to contact Seymour, and acknowledged that no other steps were taken to investigate Seymour during the interim three month period.

         At the close of the State's evidence, Seymour moved for a judgment of acquittal based upon the three-year statute of limitations set forth in section 287.128.11. Seymour argued that his offense was discovered as of February 3, 2014, and that the filing of charges more than three years later on May 17, 2017 was time-barred. The State argued that Seymour's offense was not discovered until May 19, 2014, and that the filing of charges on May 17, 2017 was not time-barred.

         The trial court granted Seymour's motion for judgment of acquittal, and dismissed the proceedings. In a written judgment dated February 28, 2018 ("Judgment"), the trial court found:

[A]fter considering the credibility of the testimony and evidence presented, [the Court] finds the discovery date of [Seymour's] alleged criminal conduct was February 3, 2014, that more than three (3) years elapsed before the filing of the State of Missouri's initial information and that in accordance with Section 287.128.11, this proceeding is now time barred.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that [Seymour's] Motion for Judgment of Acquittal at the Close of the State of Missouri's Case is hereby granted. This proceeding is dismissed [] as having not been timely brought within the applicable limitation.

         The State filed this timely appeal.

         Appellate ...


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